that they rejected it, indicating that, under this law, their land titles [were] vulnerable
because it established legal formulas for the fragmentation of the Garifuna territories
and permitted the regularization of lands possessed – even if irregularly – by third
parties, as in the case of the Rio Miel settlers. The representatives also argued that the
criteria of “inalienability, imprescriptibility and immunity from seizure” recognized by
this law, was subject “to the willingness of the communities, as these criteria could
disappear with the approval of, for example, an executive committee”; this meant that
the law failed to guarantee the inalienability of communal lands and instead allowed
communities to dispose of them freely, to establish liens, mortgages or other
encumbrances, or to lease them.
205. The State indicated that it had based its actions on different laws that regulated
this matter and pointed out that it had acted in compliance with ILO Convention No.
169, to which it had been a party since 1995. Additionally, it considered that article
346 of the Constitution, article 92 of the Agricultural Sector Modernization and
Development Act, and the provisions of chapter III of the Property Act regarding the
“Land regularization process for indigenous peoples and Afro-Hondurans” which
establishes the process for regularizing indigenous territories, were sufficient to
guarantee territorial rights. In this respect, the State argued that it did not need to
adapt its legal system, because its laws were duly aligned with the American
Convention.
C.2 Considerations of the Court
206. Regarding Article 2 of the American Convention, the Court has indicated that
this obliges States Parties to adopt, in accordance with their constitutional processes
and the provisions of the Convention, such legislative or other measures as may be
necessary to give effect to the rights and freedoms protect by the Convention. 228 In
other words, “[t]he general duty [derived from this article] entails the adoption of
measures of two kinds: on the one hand, the elimination of norms and practices that in
any way violate the guarantees established in the Convention and, on the other hand,
the promulgation of norms and the development of practices conducive to the effective
observance of those guarantees.” 229
207. In view of the arguments of the parties, the Court notes that both the
Commission and the representatives had merely indicated briefly and in general some
provisions that, according to them, could be contrary to the Convention, without
providing further arguments applicable to the instant case. Nevertheless, those
arguments relate to two moments: (a) the laws in force when the titles were awarded,
and b) the current legislation.
208. Regarding the first moment, the Court notes that article 346 of the Honduran
Constitution provided for the protection of the rights and interests of the indigenous
communities, especially of the lands and forests where they were settled. 230 However,
228
Cf. Case of Genie Lacayo v. Nicaragua. Merits, reparations and costs. Judgment of January 29,
1997. Series C No. 30, para. 51, and Case of the Kuna Indigenous People of Madungandí and the Emberá
Indigenous People of Bayano and their members, supra, para. 192. and Case of Tarazona Arrieta et al. v.
Peru. Preliminary objection, merits, reparations and costs. Judgment of October 15, 2014. Series C No. 286,
para. 153.
229
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999.
Series C No. 52, para. 207, and Case of Tarazona Arrieta et al., supra, para. 153.
230
Article 346 of the 1982 Constitution of Honduras stipulates that: “[i]t is the obligation of the State
to adopt measures to protect the rights and interests of the indigenous communities that exist in the
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